Bangalore District Court
Smt.Usha Prabhakar W/O M.Prabhakar vs Vikram Chugh on 16 November, 2016
IN THE COURT OF I ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
(CCH.NO.2)
Dated, this the 16th day of November 2016.
PRESENT
Sri.Ravi M. Naik,B.Com,LL.M.,
I Addl.City Civil & Sessions Judge, Bangalore.
O.S.NO.3162/2015
PLAINTIFF Smt.Usha Prabhakar w/o M.Prabhakar, aged
about 58 years, r/a no.196, 7th main, 4th
block, Jayanagar, Bangalore 560 011.
(By Sri.S.Gangadhara Aithal- Advocate)
- V E R S U S -
DEFENDANT Vikram Chugh, father's name not known,
Hindu, aged about 50years, Chamundeshwari
Enterprises, No.16, New no.16/2, (1/C), 7th
cross, Kumarapark(West), Bangalroe-20.
(By sri.S.C.V- Advocate)
Date of institution of the suit : 4.4.2015
Nature of the suit (suit on Suit for ejectment
pronote, suit for declaration and
possession suit for injunction,etc) :
Date of the commencement of 4.2.2016
recording of the evidence :
Date on which the Judgment was 16.11.2016
pronounced :
Total duration Year/s Month/s Day/s
01 07 12
(Ravi M. Naik)
I Addl.City Civil & Sessions Judge,
Bangalore.
2 O.S.No.3162/2015
J U D G M E N T
The plaintiff has filed a suit against the defendant with a prayer to pass judgment and decree for ejectment directing the defendant to vacate and deliver the vacant possession of the suit premises and also directing the defendant to pay the mesne profits from the date of the suit till delivery of the vacant possession and cost of the suit and such other reliefs.
2. The brief averments of the plaint are that, the plaintiff is the owner of the suit schedule premises. The defendant was a tenant under the plaintiff on a monthly rent of rs.13,500/- excluding the water and electricity consumption charges. The tenancy is oral and the defendant is paying the monthly rents by way of cheques and the tenancy commences from 1st of every calender month ending with the last day of the month.
3. It is further stated that the plaintiff is in need of the suit premises for her own use and occupation and she requested the defendant to vacate the schedule 3 O.S.No.3162/2015 premises, but the defendant failed to vacate the premises. Hence, the plaintiff constrained to issue a notice of termination of tenancy dt; 9.3.2015 by RPAD. Said notice was duly served on the defendant on 10.3.2015. Inspite of the service of the notice the defendant failed to comply the demands made in the notice. Hence, the plaintiff constrained to file this suit.
4. In pursuance of the suit summons the defendant appeared through his counsel and filed written statement. The sum and substance of the contention of the defendant in his written statement is that the suit is not maintainable for jon-joinder and mis-joinder of necessary parties. There is no land lord and tenant relationship between the parties in respect of the suit schedule property. It is further contended that the plaintiff has not caused notice as contemplated u/s 106 of the TP Act. It is further stated that same has been aptly replied by the defendant. It is further contended that at the time of the tenancy the defendant has paid 4 O.S.No.3162/2015 Rs.1,00,000/- as an interest free refundable deposit in terms of clause-3 of the agreement and it is agreed between the parties that the rents shall be enhanced by 10% once in every 2 years. The present rent payable by the defendant is Rs.13,500/-. The Plaintiff has been accepting the same. There is no arrears of rent. The rental agreement has been renewed/extended from time to time. Therefore, the plaintiff cannot demand the defendant to quit and deliver the premises.
5. It is further contended that during January 2013, the plaintiff approached the defendant with an offer to sell the premises for sale consideration of Rs.60,00,000/-. Both the parties readily accepted. Thereafter the legal opinion was obtained, but the plaintiff did not act upon the promises and assurances made by her. It is further contended that the plaintiff by her letter dated 15.1.2013, permitted the defendant to carryout the repairs and other related works to the suit premises and she had agreed to reimburse the cost of the 5 O.S.No.3162/2015 renovation to the defendant after 15 years subject to wear and tear in the very same letter. The defendant has spent sum of Rs.22,00,000/- towards renovation of the suit schedule property. It is further contended that the plaintiff possessed number of immovable properties in and around Bangalore. But neither the defendant nor his family possessed any suitable alternate accommodation for his business purpose. Only with a malafide intention to secure higher rents and higher deposits, the plaintiff has filed the present suit. It is further contended that there is no cause of action for filing the suit. For above all reasons, the defendant has prayed for dismissal of the suit.
6. On the basis of the above pleadings this court has framed the following issues:
1. Whether the plaintiff proves that he has terminated the tenancy of the defendant by issuing a notice on 9.3.2015 as contemplated under Sec.106 of T.P.Act ?
2. Whether the defendants prove that suit is bad for non-joinder and mis-joinder of parties ?6 O.S.No.3162/2015
3. Whether the defendant proves that in the month of January 2013 plaintiff offered the suit schedule premises for a sale consideration of Rs.60,00,000/- ?
4. Whether the defendant further proves that he has invested sum of Rs.22,00,000/- for renovation of the suit premises ?
5. Whether defendant proves that court fee paid by the plaintiff is insufficient ?
6. Whether the plaintiff is entitled for relief of ejectment, mesne profits as prayed ?
7. What decree or order ?
7. The plaintiff in order to prove her case, got examined her husband i.e., special Power of Attorney holder as PW.1 and got marked Exs.P.1 to P.12 documents. Inspite of giving sufficient opportunities, the defendant has failed to cross-examine PW.1 and failed to lead any evidence on his behalf.
8. Heard the learned Counsel appearing for the plaintiff. Inspite of giving sufficient opportunities, the learned Counsel appearing for the defendant has not canvassed the argument. The argument of the defendant was taken as 'nil'.
7 O.S.No.3162/2015
9. My findings on the above issues are as follows: -
(1) Issue no.1 : In the affirmative (2) Issue nos.2 to 5 : In the negative (3) Issue no.6 : Partly in the affirmative (4) Issue no.7 : As per final order REASONS
10.Issue no.1: According to the plaintiff, the defendant was a tenant under the plaintiff and the said tenancy was a monthly tenancy commencing from first of every month and ending on the last day of every month and it was an oral tenancy in respect of the suit schedule premises. No doubt, the defendant has contended that the plaintiff offered to sell the suit premises for a sale consideration of Rs.60Lakhs. Except the said averments in para-6 of the written statement, the defendant has not produced any iota of material to substantiate the same. The recitals of Ex.P.2 and P.3 i.e., khata extract reveals that the plaintiff is the owner of the suit premises. The version of PW.1 on oath discloses that the defendant was a tenant under the plaintiff on a monthly basis. No 8 O.S.No.3162/2015 doubt, in the written statement, the defendant has contended that the plaintiff is not the land lord and he is not the tenant under her. But, the recitals of Exs.P.2 & P.3 are contrary to the version of the defendant. Said documents clearly disclose that the plaintiff is the owner of the suit schedule property.
11.Ex.P.7 is the notice of termination of tenancy issued by the plaintiff to the defendant dated 9.3.2015 by registered post acknowledgement due. Ex.P.7(b) is the postal acknowledgement due card. The recitals of Ex.P.7(b) is clear that the notice issued to the defendant by RPAD has been served to the defendant. Ex.P.10 is the reply to the said notice. No doubt, in the reply the defendant has contended that he has spent a sum of Rs.22 Lakhs towards renovation of the suit premises, but he has not produced any corroborative material to substantiate his contention taken in the written statement. On the contrary, the recitals of Ex.P.7 disclose that the plaintiff issued a legal notice under Ex.P.7 and 9 O.S.No.3162/2015 that has been served on the defendant. Thus, the tenancy of the defendant is terminated by issuing Ex.P.7 as contemplated under Sec.106 of the T.P.Act. Hence, I answer Issue no.1 in the affirmative.
12.Issue no.2 : In the written statement, at para-1, the defendant has contended that the suit is bad for non- joinder and mis-joinder of necessary parties. Except the bare contention in para-1 of the written statement, the defendant has not adduced any evidence or cross- examined PW.1 that who are all necessary parties to the suit. It is a suit for ejectment. The plaintiff is the owner of the suit premises and the defendant was a tenant under her. Ex.P.2 and P.3 khata certificate pertaining to the suit property is in the name of the plaintiff. Ex.p.5 and P.6 reveals that the she has paid the taxes to the BBMP. She alone is the owner of the suit premises. Under these circumstances, the contention taken by the defendant in para1-1 of the written statement that the suit is bad for 10 O.S.No.3162/2015 non-joinder and mis-joinder of necessary parties, holds no water. Hence, I answer Issue no.2 in the negative.
13.Issue nos.3 & 4 : Since both these issues are interconnected with each other, in order to avoid repetition, I would like to answer them together.
14. According to the defendant, in the month of January 2013, the plaintiff offered to sell the suit schedule premises to the defendant for a sale consideration of Rs.60Lakhs. If really the plaintiff offered to sell the suit schedule premises to the defendant, nothing prevented the defendant to enter into an agreement of sale incorporating the offer made by the plaintiff. Except the bare contention taken in the written statement to that effect, no iota of material is produced by the defendant to substantiate that the plaintiff offered to sell the suit schedule premises to the defendant for a sale consideration of Rs.60 lakhs.
15. The defendant has contended that he has invested sum of Rs.22Lakhs for renovation of the suit 11 O.S.No.3162/2015 premises. But, no iota of material is produced by the defendant to corroborate that he has invested Rs.22 Lakhs for renovation of the suit premises. Rs.22 Lakhs is not a small amount, but it is a huge sum of money. If he had really invested the said huge amount, he could produce the bill or he could examine the person from whom he had purchased material for alleged renovation of the suit premises. He has not produced any iota of documents to substantiate his contention that he has invested Rs.22 lakhs for renovation of the suit premises. Under these circumstances, the defendant has failed to establish that the plaintiff offered the suit premises for sale to the defendant and the defendant has invested Rs.22 Lakhs for renovation of the suit premises. Hence, I answer Issue nos.3 & 4 in the negative.
16. Issue no.5 : According to the defendant, the court fee paid by the plaintiff is insufficient. On careful perusal of the plaint averments coupled with the valuation slip furnished by the plaintiff. It discloses that 12 O.S.No.3162/2015 the plaintiff has valued the suit under sec.41 of Karnataka Court Fee & Suit Valuation Act and paid the court fee as contemplated under the said provision. Therefore, the contention taken by the defendant that the court fee paid by the plaintiff is insufficient holds no water. Hence, I answer Issue o.5 in the negative.
17. Issue no.6 : In view of my foregoing discussion on Issue nos.1 to 5, this court is of the opinion that the plaintiff has established that she is the absolute owner of the suit schedule premises and she has also established that the defendant was a tenant under her on a monthly rent of Rs.13,500/- and the plaintiff is in need of the suit schedule premises for her own use and occupation and she has terminated the tenancy of defendant as contemplated under Sec.106 of T.P.Act. Therefore the plaintiff is entitled for the relief of ejectment. The plaintiff has also sought for the relief of mesne profits. Enquiry regarding mesne profits shall be held as contemplated 13 O.S.No.3162/2015 under order 20 rule 12 of CPC. Accordingly I answer Issue no.6 partly in the affirmative.
18. Issue no.7 : In the result, I proceed to pass the following :
ORDER The suit of the plaintiff is decreed in part with costs.
The defendant shall quit, vacate and deliver vacant possession of the suit schedule premises to the plaintiff within 60 days from the date of this order.
A separate enquiry shall be held with regard to the mesne profits as contemplated under Order 20 rule 12 of CPC.
Office is directed to draw decree accordingly.
(Dictated to the Judgment Writer, typed by her, corrected and then pronounced by me in open Court on this the 16th day of November 2016).
(Ravi M. Naik), I Addl. City Civil & Sessions Judge, Bangalore.14 O.S.No.3162/2015
ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF PW.1 M. Prabhakar LIST OF DOCUMENTS MARKED FOR PLAINTIFF Exs.P-1 Special power of attorney " P-2 Khata Certificate " P-3 Khata extract " P-4 Endorsement " P-5 Property tax paid receipt " P-6 Statement of account " p.7 Legal notice dated 9.3.2015 " p.7(a) Postal receipt " p.7(b) Postal AD card " p.8 Colour photos " p.9 CD " p.10 Reply " p.11 Rejoinder dated 15.5.2015 " p.12 Rejoinder " p.12(a) Envelope " p.12(b) Postal receipt LIST OF WITNESSES EXAMINED FOR DEFENDANTS: NIL LIST OF DOCUMENTS MARKED FOR DEFENDANTS : NIL (Ravi M. Naik), I Addl. City Civil & Sessions Judge, Bangalore.